What is legal DNA testing?

What is legal DNA testing?

Written by
Ellen
Hinkley
1 August 2016

In a previous article, ‘Why pay more for ‘legal’ paternity tests?’ we explained the difference between home and legal DNA testing, outlining the reasons for the difference in costs of the two. However, this may have still left you wondering ‘what is legal testing used for and how does it work?’

Well, whilst there are several uses for legal DNA tests, the main ones include establishing paternity when dealing with issues such as child maintenance payments or contact arrangements and in immigration applications. Despite the fact that these legal DNA tests are often crucial components to legal procedures, advice and information are sometimes confusing or difficult to find. This can add extra stress to situations which are often already straining, and so we’ve tried to explain a little more what this type of DNA testing has to offer, as well as extra procedures that it helps to be aware of before taking one.

What makes legal DNA testing different?

The key difference between legal DNA testing and so-called ‘peace of mind’ DNA testing is that legal tests cannot be carried out at home, or by participants themselves. In order to be deemed valid, no matter what reason they are being taken for, legal DNA tests must be carried out by an authorised official, who will send the samples to lab for analysis. At no stage of the process should the test be handled by those taking it, and it is therefore sent directly to the relevant official from an accredited DNA testing body, which this official will return the samples to. This is to ensure that the results of these DNA tests are as accurate as possible and, in order to ensure false results are easily spotted, photographs are usually taken of the participants, adding an extra level of visual verification. A list of accredited companies that are authorised to carry out legal DNA tests can be found at the government website’s list of approved laboratories.

What is legal DNA testing used for?

As previously mentioned, determination of paternity is one major reason for carrying out a legal DNA test, for example when dealing with child custody and inheritance issues. A legal DNA test is often court ordered, in cases such as when one parent has refused to take a test voluntarily – this is known as a ‘court approved DNA test’. This is for many reasons, including financial support, but also the child’s right to know his/her genetic heritage, particularly so they can be aware of or can even be genetically screened for any inherited diseases known to run in the family. The results of such a test can 100% prove that someone is not the parent and predict with 99.99% certainty that someone is the biological parent, providing clarity to what can often be an emotional and uncertain issue.

Another major use of legal DNA tests is for immigration applications which are most often taken in order to prove genetic relation between two people, in order for one member of the family to join another in a foreign country. If the genetic relationship between the two family members is doubted, then it will strengthen an immigration application to prove that they are related using a legal DNA test. In this case the legal DNA test is not court ordered but does need to be a court approved DNA test in order to be used as evidence. It is therefore entirely up to the applicant and their family member as to whether they will take it to support their application.

How are legal DNA tests carried out?

An important consideration when taking a DNA test for immigration purposes is that it should be carried out in the applicant’s county of residence, but at a British Embassy if at all possible. If not, other locations are available, but it’s still necessary to register the case with a British Embassy, in order to ensure it is valid and admissible. Making appointments to have the test carried out there may also be the responsibility of the participants. However, it isn’t as complicated as it sounds, and it may be possible to arrange for the DNA testing company to organise this, as some of them work with embassies and already have relevant systems in place.

So what if you’re taking a legal DNA test to determine paternity? This is less complex. You can usually choose the most convenient person, most often a doctor, to carry out the test, which will be directly sent to and returned by them. All you need to do is turn up, take the test and wait for the results, which will be sent straight to the court, where they can be used as evidence, as well as to the named parent that lives with the child. Most paternity DNA tests, as well those taken for immigration purposes, use samples taken from the inside of your cheek, via a swab. This is known as a buccal swab and is a painless, non-invasive and quick procedure, which is suitable for adults and children alike. In some circumstances, such as when taking a legal prenatal paternity test, blood or other slightly more invasive techniques may be required in order to collect a sample. However, in most cases these are still quick and relatively painless procedures and will be carried out by trained medical professionals. In terms of results, lots of companies advertise legal DNA tests which are sometimes quicker than ‘peace of mind’ tests, with some offering the option for same day results.

This does, however, come at a higher cost. The main aspect that both paternity and immigration legal DNA tests have in common is that, except in exceptional circumstances, the full cost burden of taking the relevant legal DNA test falls on the participants, even if it needs to be a court approved DNA test. The cost of taking a legal DNA test is around £200 higher than a home paternity test, as discussed in ‘Why pay more for ‘legal’ paternity tests?’, and must be paid in full by the participant. This price also changes depending on how many participants are taking the test, which is particularly relevant in cases of immigration where more than one relative may be making an immigration application, or if testing the paternity of more than one child. As well as the cost of the test itself, in order to apply for a court approved DNA test when someone refuses to take one, a fee of £365 must be paid, and appointments at which samples are taken can also incur additional costs. Different circumstances, such as having the samples taken in prison or ordering a hard copy of results may also make the process more expensive.

The outcome of a legal DNA test used to check paternity does, however, have an impact on its cost, and specifically, on who pays. If the person tested is proven not to be the biological father then there may be a significant reduction in costs for this person, including those arising from the DNA test itself, but also a refund of any maintenance payments made following a denial of parentage. It’s important to note, however, that refunds in the costs of the DNA test are only made if it is carried out by the Child Support Agency or Child Maintenance Service, which are public rather than private services. This often works out to be cheaper in the first place, at around £250, but make sure you check the details, such as how long the results will take, with those handling your case, as this is not made clear on the website, possibly meaning it varies. These public services may also pay for the cost of a court approved DNA test if the person being tested is unable to pay. If the participant does end up being shown to be the father, however, this cost must be paid back in full.

So what about the legal impact?

As the name suggests, legal DNA tests can be used as evidence in court. However, this does not mean that the legal impact is the same in every case. The impact that a legal DNA test has on a case is completely dependent on the reason it was taken. For example, looking at legal paternity tests, two men may be proven not to be the father of their corresponding children. If one of those men still wanted contact with the respective child, whilst the other did not, they may both still end up with their desired, opposing outcomes, despite receiving the same test result.

What else are legal DNA tests used for?

Other family law issues, such as inheritance disputes involving siblings, may benefit from the use of legal DNA tests. If it isn’t possible for a person to take a paternity test to prove they’re a person’s biological child (in order to claim an inheritance), their DNA can be tested against a known child’s DNA, independently of their parents, in a sibling DNA test. Unlike paternity tests, the accuracy with which these tests can determine whether or not two people are siblings is lower, and decreases further if no parent is available to test. This is mainly because of the fact that siblings are less genetically related than parents are to children, and is further complicated by cases of ‘half-siblings’ who are even more genetically distinct than ‘full siblings’. Instead of the conclusive ‘biological relationship’ or ‘no biological relationship’ that paternity tests provide, sibling DNA test results are usually given on a scale of likelihood, with anything above 1.0 suggesting some genetic relatedness and anything under 1.0 meaning it is unlikely that the two individuals are genetically related. The extra genetic analysis sibling DNA tests require explains the higher price when compared to paternity tests, both for legal and ‘peace of mind’ tests. Beware of tests that appear cheap, they may not be performed to the accuracy required to gain as conclusive a result as possible.

As well as family and immigration law, legal DNA tests are often used in criminal cases. The Crown Prosecution Service uses two main types of test to obtain DNA evidence. ‘Standard DNA testing’ is used for samples that are in good condition and can be seen by the naked eye, and ‘Low Copy Number testing’ is used for samples that are not visible, and/or are damaged. Both practical and statistical analysis is used to build genetic profiles which are inputted into a database, and used to compare to other profiles which have previously been submitted to the UK National DNA Database. Using this database, which was set up in 1994, the Home Office has used it to solve over 300,000 crimes in the UK. It includes the genetic information of over 5 million people, a number that has almost doubled in the last 10 years. Genetic profiling involves comparison of samples at crime scenes to samples in the database which are already assigned to an individual, to see if they match, and if so, linking that individual to a certain place or object.

Legal DNA tests used in criminal cases

The UK National DNA Database is an understandable worry to some as it poses certain ethical issues. One explanation for the significant increase in the number of people who have had their DNA included in the database since 2001, is that this is when the Criminal Justice Act amended the law to allow DNA samples to be taken on arrest, and stored regardless of guilt. However, this has since been overridden by legislation which means DNA obtained from those who were later released without charge or found not guilty must be destroyed after a set amount of time. The database also contains DNA from those who have voluntarily provided samples, for example, to exclude them as suspects if they have witnessed a crime. It’s worth mentioning that the genetic information stored for criminal purposes is only a fraction of the total genetic information contained in a person’s DNA. This has obvious drawbacks when catching criminals, but does mean that the genetic information stored is limited. Private companies such as those that provide private investigators also use DNA tests, and in many cases, DNA evidence can mean the difference between a guilty and not guilty verdict.

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